UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-2268

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE IGNACIO MONTANO-SILVA,

a/k/a Waldemar John Lugo, Etc.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(February 9, 1994)

Before POLITZ, Chief Judge, JOLLY and DUHÉ, Circuit Judges.

PER CURIAM:

Jose Ignacio Montano-Silva applied for a passport under the

name of Waldemar John Lugo. The authorities discovered that he was

not Lugo and arrested him, recovering a firearm during a search of

his residence. At this point Montano-Silva identified himself as

Primitivo Castro, a Venezulalan national, an identity he asserted

throughout two detention hearings. It was only after an extensive

investigation that the government discovered Montano-Silva's real

identity.

Montano-Silva pleaded guilty to the three counts for which he
 

1United States v. Blackman, 904 F.2d 1250, 1259 n.11 (8th Cir.

1990) ("Clearly the identification of the defendant is a material

fact."); see United States v. McDonald, 964 F.2d 390 (5th Cir.

1992) (affirming an obstruction of justice enhancement for giving

a false name to the magistrate).

2

was indicted: possession of a firearm by an illegal alien in

violation of 18 U.S.C. § 922(g)(5); making a fraudulent statement

in a matter within the jurisdiction of the United States in

contravention of 18 U.S.C. § 1001; and making a false statement in

an application for a passport in violation of 18 U.S.C. § 1542.

Sentenced to 21 months imprisonment, he timely appealed.

Applying the Sentencing Guidelines, the district court

increased Montano-Silva's offense level for obstructing justice by

his claim of a false identity. Montano-Silva challenges that

enhancement on the grounds that his falsehood was not material to

the investigation. We otherwise conclude.

By claiming to be Primitivo Castro at his detention hearings,

Montano-Silva provided "materially false information to a . . .

magistrate" within the meaning of Application Note 3(f) to U.S.S.G.

§ 3C1.1. It would be a rare situation in which a defendant's

identity is not material.1 It is material here. Castro, another

Venezualan national, did not commit the charged offenses;

Montano-Silva did. Further, a defendant's personal history is

always pertinent to sentencing; the court must know whom it is

sentencing in order to sentence properly. Montano-Silva previously

had been arrested on a narcotics charge, grist for an upward
 

2United States v. Thomas, _____ F.3d _____, 1993 WL 517020

(7th Cir. 1993).

 

3See U.S.S.G. § 3C1.1, Application Notes 3(g), 4(a); McDonald.

 

4United States v. Sherbak, 950 F.2d 1095 (5th Cir. 1992).

 

5U.S.S.G. § 2K2.1(b)(2).

 

6See United States v. Alfaro, 919 F.2d 962 (5th Cir. 1990)

(district court's factual findings are reviewed for clear error;

the party seeking an adjustment in sentence level has the burden of

proving the factual predicate justifying the adjustment).

3

departure.2 Additionally, he obstructed justice by giving a false

name to law enforcement authorities, causing the expenditure of

considerable time and resources in the determination of his true

identity.3 The district court's adoption of the Presentence Report

and rejection of Montano-Silva's objections constitutes sufficient

findings to support the enhancement.4

Montano-Silva also contests the district court's decision to

assign an offense level of 14 to the firearm possession conviction.

He maintains that the offense level should have been set at six,

the level accorded a defendant who possesses the weapon "solely for

lawful sporting purposes or collection . . . ."5 Montano-Silva did

not suggest either of these mitigating circumstances to the trial

judge; rather, he contended that he possessed the gun for personal

security. The district court's implicit determination that he

failed to carry his burden of proof is not clearly erroneous.6

AFFIRMED.